Orissa High Court
Batakrushna Das And Others vs Batakrushna Das And Others on 9 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 398 OF 2023
Batakrushna Das and others .... Petitioners
Mr. Ajit Kumar Tripathy, Advocate
-versus-
Batakrushna Das and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 09.08.2023
3. 1. This matter is taken up through hybrid mode.
2. Judgment dated 24th February, 2023 (Annexure-7)
passed by learned Additional District Judge, Salipur in FAO
No.14 of 2021 is under challenge in this CMP, whereby
dismissing the appeal, the order dated 8th September, 2021
(Annexure-6) passed by learned Civil Judge (Junior Division),
Salipur in I.A. No. 35 of 2020 (arising out of C.S. No.37 of
2020) has been confirmed.
3. Mr. Tripathy, learned counsel for the Petitioner submits
that C.S. No.37 of 2020 has been filed for declaration of right,
title and interest over the suit land pertaining to Plot No.655
under Khata No.267 measuring an area of Ac.0.020 decimals
situated in mouza Kaudkola in the district of Cuttack. In Sabik
Settlement of 1929, Plot No.895 measuring an area of Ac.0.14
decimals was recorded in the name of Kangali Das and others.
During 1970 Settlement Operation, the same was carved out in
two plots, i.e. Plot No. 977 measuring an area of Ac.0.10
decimals and Plot No.978 measuring an area of Ac.0.02
decimals and it was jointly recorded in the name of successors
// 2 //
of Ananda Das, but the rest area of Ac.0.02 decimals has been
reduced from Sabik Plot and in the remarks column of the
R.O.R., forceful possession of Narahari Das, father of Opposite
Parties was recorded. During consolidation operation, the suit
land was wrongly recorded in the name of Defendants-Opposite
Parties in Plot No.655. Taking advantage of the same, the
Opposite Parties tried to evict the Petitioners and make
construction over a portion of the suit land which is just in front
of their house. Hence, the Petitioners finding no other
alternative have filed the aforesaid suit and also filed an
application under Order XXXIX Rules 1 and 2 C.P.C. Learned
trial Court as well as learned Appellate Court holding that
consolidation R.O.R. has been prepared in the name of Opposite
Parties refused to grant of injunction. Assailing the same, this
writ petition has been filed.
3.1 It is further submitted by Mr. Tripathy, learned counsel
for the Petitioners that consolidation R.O.R. was prepared
without providing any opportunity of hearing to the Petitioners.
Further, the Petitioners are still in possession over the suit land
and are using the same as frontage of their house. Thus, prima
facie case is in favour of the Petitioners and balance of
convenience leans in their favour. They will suffer irreparable
loss, if any construction is made over the suit land by which
frontage of the residence of the Petitioners will be obstructed.
This material aspect was not taken into consideration either by
learned trial Court or by learned Appellate Court. Hence, the
impugned orders are not sustainable.
// 3 //
4. Considering the submission made by learned counsel for
the Petitioners, this Court finds that admittedly consolidation
R.O.R. stands recorded in the name of Opposite Parties. The
said R.O.R. has not yet been set aside by any competent Court
of law. The consolidation R.O.R. being a document of title, this
Court is of the considered opinion that the recorded owners
should not be restrained from entering upon the suit land and
using it independently. Thus, learned trial Court as well as
learned Appellate Court has committed no error in refusing to
entertain the application under Order XXXIX Rules 1 and 2
C.P.C.
5. Accordingly, the CMP being devoid of any merit stands
dismissed.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
bks Judge
Signature Not Verified
Digitally Signed
Signed by: BIJAY KUMAR SAHOO
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2023 11:04:06
